Canada Labour Code
File No. Z2969
Assignment no. MJIC01202
File YM2707-8647
In the matter of a complaint of unjust dismissal Under Part III of the Canada Labour Code
Between
Mr. Ralph Picher
The Complainant
And
Innotech-Execaire,
a Division of I.M.P. Group Limited
The Employer
The complaint.
1- On February 17, 2010 and Mr. Ralph Picher filed a complaint with Human Resources Development Canada, Labour Branch, stating that he was unjustly dismissed from his employment with IMP group Ltd. on December 15, 2009.
2- The undersigned was appointed as adjudicator in the above mentioned matter and held a hearing on January 21, 2011.
The Complainant’s opening statement
3- In his opening statement, Mr. Picher essentially alleges that he was dismissed in contravention of section 239 because of an absence due to sickness, that even though the medical note he originally submitted recommended a leave of more than 12 weeks, he says that his illness was in fact for a lesser period. He further indicates that he is not seeking reinstatement but financial compensation for wages lost for one year.
The Employer’s opening statement.
4- Ms. Hopfner, acting for the employer states in her opening statement that she does not contest Mr. Picher right to file the complaint, admitting that 1) he has indeed completed 12 continuous months of continuous employment with the employer, 2) he is not a member of a group of employees subject to a collective agreement and 3) and that the complaint and the request for arbitration were properly filed within the required delays.
5- She claims that Mr. Picher was not dismissed for an absence due to sickness, but for failing to report to work when he was capable to do so without restriction.
6- Indeed, a medical expertise to which Mr. Picher was subjected indicates clearly that Mr. Picher was able to fulfill his duties on a full-time basis.
7- Article 239 only applies in a case of an absence due to a legitimate illness which is not Mr. Picher’s case and accordingly on behalf of the employer Ms. Hopfner submits that the complaint should be dismissed.
8- Article 239(1) reads as follows:
239. (1) Subject to subsection (1.1), no employer shall dismiss, suspend, lay off,
demote or discipline an employee because of absence due to illness or injury if
(a) the employee has completed three consecutive months of continuous employment by the employer prior to the absence;
(b) the period of absence does not exceed twelve weeks; and
(c) the employee, if requested in writing by the employer within fifteen days after his return to work, provides the employer with a certificate of a qualified medical practitioner certifying that the employee was incapable of working due to illness or injury for a specified period of time, and that that period of time coincides with the absence of the employee from work.
The evidence
9- The first witness for the employer was Ms. Genevieve Nantel, Human Resources generalist with the employer.
10- She states that Mr. Picher was working as a receiver for Innotech-Execaire, a division of the I.M.P. Group.
11- As a receiver he is called upon to deal with all incoming mail, parcels and aircraft components and parts.
12- On December 14, 2009 she was advised that Mr. Picher had left work stating that his spouse had taken ill, and that the next day he personally called in sick.
13- A week later, he was still not back at work, and that is when Mr. Michel Campeau, his supervisor, told her that he just had a conversation with Mr. Picher asking when he was to be expected back at work, but he was told that there was no planned return date.
14- The next day, Human resources received a medical note signed by Dr. Lawrence Morris, stating the following:
“Mr Picher is unable to work at present for medical reasons.”
15- As is the practice, the employer sent Mr. Picher short-term disability forms to be completed by him and by his physician. Those two forms were completed by Mr. Picher and his physician and returned to the company.
16- The form completed by the physician on December 31 st 2009 indicates April 1, 2010 as the date where the patient will be capable of returning to the workplace, to his own occupation. The form also indicates that the reason for the absence was a depressive state.
17- These forms, as completed, were received by the employer on January 4, 2010. Immediately upon receipt, Ms. Nantel states that she called Mr. Picher to inquire about his situation and she was told that he did not feel ready to go back to work as there were issues with some coworkers, and that he was also still caring for his spouse.
18- On the 5 th of January, she called Mr. Picher back to inquire about those work related issues with some coworkers and suggested that he should come in so that the matter could be dealt with but he replied that he did not feel okay about this.
19- After reviewing the short-term disability physician’s report, and after consultation with her supervisor, it was decided to subject Mr. Picher to a medical expertise on January 13, 2010. This request was made on January 8, 2010 and delivered to Mr. Picher's home via FedEx the same day.
20- The request, inter alia, states the following:
Mr. Picher, you have been absent from work due to a medical condition since December 15, 2009. In order to evaluate your current situation and get a second opinion we require that you undergo a psychological assessment. Your appointment as been scheduled on Wednesday, January 13, 2010 at 10 AM with Dr. Serge Gauthier.
21- Mr. Picher did meet with Dr. Gauthier as scheduled, and underwent a psychological assessment.
22- The medical expertise dated January 13, 2000 was received by Human resources on or about January 15, 2010, and concludes [extract]:
A mon avis Monsieur Picher est apte à effectuer les tâches essentielles de son poste de magasinier. À mon avis monsieur Picher ne présente pas de limitations mentales fonctionnelles qui l’empêchent d’effectuer les tâches essentielles de son poste
23- It is to be noted that no copy of this expertise was sent to Mr. Picher, nor was it requested by him.
24- Having read the report, it was decided to send a letter to Mr. Picher denying his short-term disability application and requiring his return to work "on Monday, January 25, 2010 as per your schedule [8 AM to 4:30 PM] ”. The letter also added the following: " if you do not present yourself work on that date and time you'll be deemed to have resigned your job."
25- Mr. Picher failed to return to work as requested on January 25.
26- Michel Campeau, inventory control manager for the employer, and Mr. Picher's superior, was the employer's next witness.
27- He confirms that on December 14, 2009, Mr. Picher told him he had to leave to take care of his wife, and that during a telephone conversation he had with him the next day, he was told his wife was still ill and, received the same comment the next day as well.
28- After that, he did not have any other contact with Mr. Picher for at least a week.
29- He added that he had no problems or issues with the Mr. Picher’s work and stated that it was only after he had called Mr. Picher and told him that short-term disability benefits would not apply in this case since he was absent for taking care of his spouse, that the employer received a signed application for short term disability benefits claiming Mr. Picher’s disability.
The complainant’s evidence
30- Mr. Picher's testimony is to the following effect:
- When he spoke with Mr. Campeau on December 22, he had just met with his the doctor, and then provided the company with a medical note.
- This is when he asked for the short-term disability application forms, he received them on December 24 and met with his doctor on December 31.
- The reason why he took off on the December 14 was because his spouse had taken ill and he had to take care of her.
- This incident with his wife turned out to be "the last straw" so to speak - it really affected him and he went to consult his physician because he really did not feel well.
- He had already noticed for a while that he was not performing adequately at work, that he could not concentrate properly and that he was making mistakes that he didn't do in the past.
- Shortly after filing the short-term disability papers on January 4, 2010, he received a phone call from Human resources requesting that he meet with Mr. Campeau. He confirms that he did mention that he didn't feel well enough to do so.
- The next day again he was asked to meet with Mr. Campeau but in the meantime he had a conversation with his doctor who told him that it was not such a good idea given his psychological condition and he mentioned this to Human resources.
- When he received the letter of January 8, 2010 requesting that the subject himself to a psychological evaluation, he agreed and he did show up and met with Dr. Gauthier. He never received a copy of Dr. Gauthier’s report nor did he ask for one.
- The first time he has a chance to review the report was on January 21, 2010, at the time of the hearing. After having reviewed the report, he disputes some of the comments Dr. Gauthier attributes to him, particularly where the report states that he mentioned that he did not feel depressed, which he states he never said to Dr. Gauthier. Dr. Gauthier states that he had quality sleep when in fact it was not so.
- When he received the letter of January 19, 2010 requesting his return to work,(which he considered to be an ultimatum to go back to work or be dismissed), he found this to be quite intimidating and did not know what to do since he did not feel able to go back to work.
-
He then spoke with his the doctor, did some
research and found the provision of this article
- He also found on the Internet that Innotech was looking to replace him as is evidenced by the job posting on the company's website.
- On January 20, Genevieve Nantel called him to make sure that he had received the letter and asked him what were his intentions about returning to work. He did not reply.
- He then asked the advice of a Labour Canada inspector, a Mr. Purnell, who told him to go to work on the 25 th if he felt up to it, and if not, to meet with Human resources.
- He admits he did not go back to work but he did call back the company and talked to someone at Human resources. He was also told by Mr. Purnell that he had also called the company about the matter.
- On January 25, he did not call the company because he felt Mr. Purnell was looking for his interest, that he was looking after his interest.
- The next day he sends an e-mail to Ms. Diane Linhares, of the company’s Human resources in the following terms:
"Ms. Linhares, would you please send me a copy of my employment record with Innotech-Execaire and could you please let me know when I can expect to receive them."
- To which he received the following response
"Following your request below, before we send you your record of employment we require that you return all company property ex: your company pass, the airport pass [if you have one], keys etc.
If you require additional information do not hesitate to contact me ."
- That is when, at the recommendation of Mr. Purnell, of Labour Canada, who had told him he had contacted the company, he sent a registered letter to the company the same day, stating the following (extract):
This letter being sent to you by registered mail is private and confidential and is in response to the letter I received dated January 18, 2010 (…) and to my recent request for my employment record, which I requested on January 26, 2010 via e-mail.
As per the Canada Labour Code I am entitled to receive 12 to 15 weeks of Employment Insurance benefits for sick leave without repercussions from my employer. Your letter as previously noted above is in total contradiction to this code. Also your response to my request for my record of employment, demanding I return my company pass and any other items, which may be deemed as the property of Innotech-Execaire, leaves no doubt you have decided to terminate my employment with Innotech-Execaire. I wish to make note; I have never indicated leaving, terminating or resigning from my position or the company in any way whether verbally or in writing….
- And this is when he made an official complaint of unjust dismissal to Labour Canada.
31- In rebuttal, regarding the job posting on the Company’s website, Mr. Campeau testified that the company is always recruiting for "receivers" as these positions are difficult to fill and that in any case when the posting for the job in question was put on the company’s website, he fully expected that Mr. Picher would be returning to work in any case.
Analysis and Decision
32- The issue is twofold in this case
1) does the employer have right to verify an employee’s medical condition when he is absented himself from work for such a reason,
and
2) if so, whether the employer can require an employee to return to work based on a medical report certifying his capacity to do so.
33- An employer can ask for a medical certificate when the information given is incomplete or imprecise, it has reason to believe that the employee is not sick, it has reasonable and serious grounds to believe that there is abuse or when all the employee's previous absences exceed a reasonable level.
34- Where the medical information or certificate provided by the employee's doctor is inadequate, a number of court and arbitration decisions have held that the employer may request additional information or request an independent medical examination to complete or verify the medical information or certificate provided by the employee.
35- As a general rule, employers are not entitled to conduct an independent medical examination in order to verify the accuracy of a medical certificate produced from the employee's own doctor, or to verify an illness or disability.
36- However, an independent medical examination is permitted if the employee consents to it as was the case with Mr. Picher.
37- I ndeed Article 239 only applies in a case of an absence due to an illness or injury which is not Mr. Picher’s case at the time of his termination which was January 25, 2010, when he did not return to work as required.
38- Rather than relying on his own physician to review or contest Dr. Gauthier’s expertise, Mr. Picher chose to rely on his understanding of Article 239(1) and his perception of Labour Canada’s role in the circumstances through Its representative, a Mr. Purnell.
39- I have great difficulty with Mr. Picher’s testimony regarding Mr. Purnell’s role and advice in this case. Either he received misguided advice from Mr. Purnell, which I strongly doubt, or he completely misunderstood whatever advice he received.
40- The last medical evidence we have regarding Mr. Picher’s capacity to return to work is Dr. Gauthier’s expertise which is clear:
A mon avis Monsieur Picher est apte à effectuer les tâches essentielles de son poste de magasinier. À mon avis monsieur Picher ne présente pas de limitations mentales fonctionnelles qui l’empêchent d’effectuer les tâches essentielles de son poste
41-
Given
the above facts, the employer was in its right to act as it did and require Mr.
Picher to return to work, and the fact that he was “deemed terminated” by the
employer when he failed to do so may be considered harsh, but it is not in
violation of Article
42- Accordingly the present complaint is denied.
Signed this 19 th of May 2011
Guy Dufort